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German Minister of Justice Sabine Leutheusser-Schnarrenberger has
informed us this week that she supports our position that if the EU
Commission wants to uphold the policy of mandatory retention of all call
records ("data retention") at all, the EU must at least leave it to
national parliaments and constitutional courts to decide whether they
wish to implement this policy or not. More than 100 organisations from
23 European countries are currently lobbying the EU Commission to
"propose the repeal of the EU requirements regarding data retention in
favour of a system of expedited preservation and targeted collection of
traffic data".[1]
"I am permanently in touch with the EU Commission and will take your
arguments into account in our upcoming discussions",
Leutheusser-Schnarrenberger assured us.

Tuesday the EU Court of Justice in Luxembourg ruled that "limitations
in relation to the protection of personal data must apply only in so
far as is strictly necessary". It ruled "invalid" EU requirements to
publish every recipient of agricultural subsidies in the EU, deciding
that this indiscriminate policy "exceeded the limits which compliance
with the principle of proportionality imposes". "[I]t is possible to
envisage measures which affect less adversely that fundamental right of
natural persons and which still contribute effectively to the objectives
of the European Union rules in question", the Court held.[2]

"The EU must now also abandon the disproportionate practise of
indiscriminate retention of records on any communication, lest the EU
Court of Justice rule the EU data retention directive invalid, too",
comments Patrick Breyer of the Working Group on Data Retention. "The
targeted preservation of suspect data is much less invasive and still
contributes effectively to the prosecution of crime. The practise of
most states world-wide demonstrates that EU rules stipulating the
indiscriminate retention of records on any phone call, mobile phone
location and Internet connection in the EU are not 'strictly necessary',
but violate our right to respect for our private lives as guaranteed in
the EU Charter of Fundamental Rights. It is not only the EU Court of
Justice but also national constitutional courts[3] and the European Court of Human Rights[4]
that have in the past ruled invalid indiscriminate intrusions into the
personal lives of innocent citizens." Six EU member states have refused
to transpose the controversial 2006 EU data retention directive; in two
more EU Member States constitutional courts have annulled data retention
laws, finding them incompatible with fundamental rights.

Last week the Canadian Government distanced itself from the
controversial EU data retention policy. It announced plans to "create a
preservation order that would require a telecommunication service
provider to safeguard and not delete its data related to a specific
communication or a subscriber when police believe the data will assist
in an investigation." "This is not data retention", the Department of
Justice pointed out. Preservation orders would be "restricted to the
data that would assist in a specific investigation."[5]

The German Minister of the Interior Thomas de Maizière has in the
past dismissed the internationally accepted procedure of data
preservation, arguing that "there is nothing to preserve if no data is
being stored".[6]
Michael Ebeling of the Working Group on Data Retention counters: "There
is nothing to abuse if no data is being stored. Data piles make abuses,
as seen at Deutsche Telekom,[7] and criminal data trade, as seen at T-Mobile,[8]
possible. Only erased data is safe data. Many states throughout the
world prosecute crime effectively using targeted instruments - the
proponents of blanket retention do certainly not mean to say that states
like Austria, Sweden or Canada fail to prosecute crime effectively?"